It is currently impossible to predict when and which cases the plenary session of the (Supreme Federal Court) will judge, as there is an informal case selection procedure marked by the individuality of the ministers and the lack of objective criteria.
This is what research conducted by Luiz Fernando Esteves, professor at Insper and associated researcher in the Constitution, Politics and Institutions group, linked to . He analyzed the progress of 1,529 cases, the number of cases included in the court’s physical plenary trial calendar between 2013 and 2019, for his doctorate thesis in law at USP.
The objective was to understand how the construction of the Supreme Court’s plenary agenda works, from the arrival of the case to the court until the trial session, who were the actors involved in this dynamic and which themes and procedural classes are selected.
“Each of them has different criteria for dealing with what comes to the office”, says Esteves. “It may be that one is more concerned with public spending. So, all tax issues have priority. Another, with criminal cases, which will therefore receive faster treatment.”
There is also influence from the press, parties and lawyers. The repercussion in media outlets may pressure ministers to release the case for trial or include it on the agenda. The same goes for the actions of parties and lawyers in magistrates’ offices.
Personality is an important point, he says. “There are people, parliamentarians, for example, with easier access to ministers. Each cabinet has its own rules, but this access is not given equally by all ministers to all lawyers and all parties. There is a very great inequality.”
According to the researcher, in addition to informality and the lack of objective criteria, there is a question of individuality. “There is an allocation of powers in the court, which puts a lot of weight in the hands of some of them”, especially the rapporteur and the president.
The release of the case for judgment depends on the rapporteur. In the case of the physical plenary, the president of the court has that case at his disposal, to include it in the calendar of a session and eventually call it for consideration. This procedure changed a little with
The system allows cases to be judged electronically. Ministers record votes and demonstrations asynchronously over a set period of time — normally a week. Previously, the virtual plenary was only used to analyze whether or not there was a general repercussion. Today, he has the same skills as the physicist.
“With the expansion of the virtual plenary, individualism has not ended. But part of the weight given to the president has been reallocated to the rapporteur, because, today, he alone can define the moment to start the trial. If he releases the process to the virtual plenary, the agenda does not pass through the president’s hand.”
Tailma Venceslau, master in political science from USP and researcher in the Judiciary and Democracy group, based at the same university, is the author of a work on the dynamics of the two plenary sessions, with a focus on the virtual one. She says that currently the rapporteurs have the greatest power over the agenda, as the release in the system automatically defines a date for judgment.
“The president, in turn, has lost much of his ability to promote or delay a trial in the virtual plenary.”
The expert points out, however, that other ministers, including the presidency, can dispute this position by asking for a view or highlighting of the trial, transferring the debate to the in-person plenary.
Lawyer and professor Wagner Gundim, doctor in constitutional law from USP, states that the procedure for creating an agenda in the Supreme Court is “so complex, with so many nuances, that it is sometimes difficult to define it”.
According to him, although the STF’s internal regulations provide criteria to “guide” the president of the STF to compose the trial calendar for each session, such as the chronological order of the processes in each of its classes, “the choice will be based on broad discretion “.
